ND (Guinea) v Secretary of State for the Home Department

In an Article 8 immigration appeal, the absence of a true exceptionality test does not remove the need for a proper proportionality assessment. The claimant must show that the demands of consistent and fair immigration control are outweighed by the right to private life. A reference to exceptionality is not necessarily fatal if the tribunal has reached a lawful conclusion. However, a conclusion giving no reasons why removal is required may make an Article 8 ground strongly arguable and justify permission to appeal.

The applicant challenged an Asylum and Immigration Tribunal determination dated 15 February 2007. The immigration judge rejected his case that he remained at risk in Guinea because of detention, ill-treatment and alleged links with an attempted coup in 1996. The judge also rejected his Article 8 claim, treating the case as insufficiently exceptional under the then-understood Court of Appeal approach in Huang v SSHD [2005] EWCA Civ 105.

Before the Court of Appeal, the applicant relied on further evidence concerning risk on return and on his residence, education and community work in the United Kingdom. The central issue was whether he had an arguable error of law, particularly because the Article 8 reasoning was very brief.

1. Risk on return. The applicant identified no ground of appeal in law against the immigration judge’s factual findings. The Court of Appeal had no proper basis to undermine findings made by the designated fact-finder. Permission was therefore refused on the risk-on-return ground.
2. Article 8 approach. The Court recognised that, following the House of Lords decision in Huang and subsequent authority, there is no true test of exceptionality. The relevant question remains whether proportionality requires the demands of consistent and fair immigration control to yield to the individual’s right to private life. It remains difficult to establish that balance. AG (Eritrea) [2007] EWCA Civ 801 was identified as demonstrating that approach.
3. A tribunal’s reference to exceptionality does not necessarily invalidate its decision. In some cases, the determination may nevertheless show that the correct legal approach was followed. In this case, however, the Article 8 conclusion was so short that it gave no reasons why immigration-control considerations required the removal of this particular applicant. That omission made the ground clearly arguable.
4. Disposition. Lord Justice Moses, with Lord Justice Ward agreeing, granted permission to appeal on the limited Article 8 ground only. The court urged the applicant to obtain skilled representation and ordered that a transcript be provided to him at public expense.

1. Asylum and Immigration Tribunal. An immigration judge determined the applicant’s case on 15 February 2007, rejecting both the risk-on-return claim and the Article 8 claim.
2. Court of Appeal (Civil Division). On 12 December 2007, the court granted permission to appeal on the limited Article 8 ground and refused permission on the risk-on-return ground.